Intentional Discrimination, by Allan J. Lichtman
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Case: 3:19-cv-00955-wmc Document #: 23-4 Filed: 01/22/20 Page 1 of 74 Exhibit 1 Case: 3:19-cv-00955-wmc Document #: 23-4 Filed: 01/22/20 Page 2 of 74 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN THE ANDREW GOODMAN FOUNDATION AND AMANDA SCOTT, Plaintiffs, v. Civil Action No. 19-cv-955 MARGE BOSTELMANN, JULIE M. GLANCEY, ANN S. JACOBS, DEAN KNUDSON, ROBERT F. SPINDELL, JR., and MARK L. THOMSEN, in their official capacities as Wisconsin Elections Commissioners, Defendants. January 15, 2020 EXPERT REPORT: INTENTIONAL DISCRIMINATION ALLAN J. LICHTMAN Case: 3:19-cv-00955-wmc Document #: 23-4 Filed: 01/22/20 Page 3 of 74 I. STATEMENT OF PURPOSE I have been asked to provide an opinion as to whether the voting identification requirements for college and university students enacted by the Wisconsin State Legislature in 2011 as part of Act 23 were intended to discriminate against young voters and would-be voters. As discussed below, my opinion in this matter is based on historical, political, and statistical information gathered and reviewed in my capacity as an expert in political history, political analysis, and historical and statistical methodology. My opinion and observations are provided from that perspective and are not intended to provide a legal conclusion but, rather, to provide the Court with facts and context for the ultimate legal determination on intent that it must make. My fee in this matter is $500 per hour. II. QUALIFICATIONS This study draws on my experience serving as an expert in voting rights litigation and my expertise in political history, political analysis, and historical and statistical methodology. I am a Distinguished Professor of History at American University in Washington, D.C., where I have been employed for 45 years. Formerly, I served as Chair of the History Department and Associate Dean of the College of Arts and Sciences at American University. I received my BA in History from Brandeis University in 1967 and my Ph.D. in History from Harvard University in 1973, with a specialty in the mathematical analysis of historical data. I am the author of numerous scholarly works on quantitative methodology in social science. This scholarship includes articles in such academic journals as Political Methodology, Journal of Interdisciplinary History, International Journal of Forecasting, and Social Science History. In addition, I have coauthored Ecological Inference with Dr. Laura Langbein, a standard text on the analysis of social science data, including political information. I have published articles on the application of social science analysis to civil rights issues. This work includes articles in such journals as Journal of Law and Politics, La Raza Law Journal, Evaluation Review, Journal of Legal Studies, and National Law Journal. My scholarship also includes the use of quantitative and qualitative methods to conduct contemporary and historical studies, published in academic journals such as Proceedings of the National Academy of Sciences, American Historical Review, International Journal of Forecasting, International Journal of Information Systems & Social Change, and Journal of Social History. Quantitative and historical analyses also ground my books, including, Prejudice and the Old Politics: The Presidential Election of 1928, The Thirteen Keys to the Presidency (co-authored with Ken DeCell), The Keys to the White House, White Protestant Nation: The Rise of the American Conservative Movement, and FDR and the Jews (co-authored with Richard Breitman). My most recent books are The Case for Impeachment and The Embattled Vote in America: From the Founding to the Present. This latter book, published in September 2018 by Harvard University Press, examines the history and current status of voting rights in America. 1 Case: 3:19-cv-00955-wmc Document #: 23-4 Filed: 01/22/20 Page 4 of 74 My book White Protestant Nation was one of five finalists for the National Book Critics Circle Award for the best general nonfiction book published in America. My book FDR and the Jews was published under the Belknap Imprint of the Harvard University Press, reserved for works of special significance and lasting impact. This book was an editor’s choice book of the New York Times in 2013, the winner of the most prestigious prize in American Jewish Studies, the National Jewish Book Award, and a finalist for Los Angeles Times Book Prize in history. My book The Case for Impeachment was an independent bookstore bestseller. In 2018, I was the winner of the Alfred Nelson Marquis Life Time Achievement Award for the top 5% of persons included in Marquis WHO’S WHO. I have worked as a consultant or expert witness for both plaintiffs and defendants in more than 90 voting and civil rights cases, providing testimony on several issues, including on intentional discrimination in the adoption of state redistricting plans and photo identification laws. My work includes more than a dozen cases for the United States Department of Justice and cases for many civil rights organizations. I have also worked as a consultant or expert witness numerous times for state and local jurisdictions. In the U. S. Supreme Court case, League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399 (2006), the majority opinion written by Justice Kennedy authoritatively cited my statistical work. I previously testified on the issue of intentional discrimination in One Wis. Inst. v. Nichol, 186 F. Supp. 3d 958 (2016). I have also testified on the issue of intentional discrimination in: Anne Harding v. County of Dallas, Texas, No. 3:15-cv-00131-D (N.D. Tex. 2018), Terrebonne Parish Branch NAACP v. Jindal, 274 F. Supp. 3d 395 (M.D. La. 2017), Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824 (D. Ariz. 2018), Lee v. Va. Bd. of Elections, 188 F. Supp. 3d 577 (E.D. Va. 2016), N. C. NAACP v. McCrory, 182 F. Supp. 3d 320 (M.D.N.C. 2016), Perez v. Texas, 891 F. Supp. 2d 808 (W.D. Tex. 2012), Veasey v. Perry, 71 F. Supp. 3d 627 (S.D. Tex. 2014), State of Texas v. United States and Eric H. Holder, 887 F. Supp. 2d 133 (D.D.C. 2012), and Comm. for a Fair and Balanced Map, et al. v. Ill. State Bd. of Elections, 835 F. Supp, 2d 563 (N.D. I11. 2011). I have enclosed an updated CV and a table of cases in which I have provided written or oral testimony in Appendix A to this report. III. EVIDENCE, METHODOLOGY, AND SUMMARY OF OPINIONS This report and analysis draw upon standard sources in historical and social scientific analysis. These include scholarly books, articles, and reports; newspaper and other journalistic articles; demographic and socio-economic information; election returns; voter registration and turnout data; court opinions, briefs, and reports; government and organizational documents; and scientific surveys and studies. These sources of information will be used both for analyses within Wisconsin and for comparisons with other states. In addition, I draw upon information from the Wisconsin Government Accountability Board’s (GAB) database. The GAB was the regulatory agency in Wisconsin that administered and enforced Wisconsin’s election laws during the timeframe 2 Case: 3:19-cv-00955-wmc Document #: 23-4 Filed: 01/22/20 Page 5 of 74 in which Act 23 was enacted. The GAB is non-partisan and, in an article entitled “America’s Top Model: The Wisconsin Government Accountability Board,” election law expert and Robert M. Duncan/Jones Day Designated Professor of Law at Ohio State University Law School, Daniel P. Tokaji said, “[t]here is one conspicuous exception to the partisan character of state election administration: Wisconsin’s Government Accountability Board (GAB).” It is “unique among state election administration bodies in the United States.”1 The purpose of this report is not to make legal conclusions, but to examine substantive issues with respect to discriminatory intent. Nevertheless, the report closely follows the methodological guidelines of the United States Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). In Arlington Heights, the Court focused on five distinct factors that are relevant to ascertaining intentional discrimination: (1) discriminatory impact; (2) historical background; (3) the sequence of events leading up to the challenged action; (4) procedural or substantive deviations from the normal decision-making process; and (5) contemporaneous viewpoints expressed by the decision-makers. This framework is consistent with standard historical methodology in examining the issue of intent. It is consistent with my substantive scholarship and my theoretical work as well (see Section II, above). My major opinions are summarized below: • The political and historical context in which the restrictions on student photo IDs were enacted, from 2000 to 2008, was one in which student and young voting trended strongly Democratic, nationwide and in Wisconsin, threatening Republican prospects. • The student ID restrictions included in Act 23 are the harshest restrictions on student IDs of any photo ID law in the nation. They are also harsher than Act 23’s restrictions on photo IDs generally, as no such restrictions apply to any other form of authorized identification under Act 23. • Though the passage of the student voter ID restrictions did not require express violation of the legislative process given the control held by the Republican majority, there were procedural abnormalities present, including: (1) quick passage of the legislation, (2) a lack of substantive debate, and (3) a lack of hearings and public input as compared to similar bills in the past. • Substantive deviations are also present, including, most notably, the inclusion of the restrictions solely on students IDs and not on any other authorized form of ID, particularly where the restrictions directly undermined the effectiveness of adding students IDs to the list of authorized IDs, a fact of which the legislature was aware at the time the restrictions were passed.